In re Ramos

2022 NY Slip Op 31110(U)

ESTATE OF Mary E. Ramos (aka Mary Elizabeth Ramos), deceased.

File No. 2018-646

Supreme Court, Ulster County

April 8, 2022

Unpublished Opinion

Jason J. Kovacs, Esq. (Rusk, Wadlin, Heppner & Martuscello) for executor Eileen Popovich Richard L. Weber, Esq. (Bond Schoeneck & King, PLLC) and

Thomas H. Benton, Esq., for objectant Cathleen Ramos, residuary beneficiary

DECISION /ORDER

SARA W. MCGINTY, JUDGE

Mary Ramos died on October 30, 2018 at age 104. Ramos lived alone with some assistance from her daughter-in-law, Joan Ramos and her grand-daughter (Joan's daughter), Cathleen Ramos. In the summer of 2012, the decedent began meeting with an attorney, Catherine Stefanik, Esq., with the goal of replacing her existing will, which had been executed a few months before, in mid-June. The existing will, she told her attorney, was not satisfactory to her. It had been prepared at the request of Joan Ramos, who supplied its terms to the attorney-draftsperson. The decedent told her attorney "didn't want to say anything or cause an issue or upset" her daughter-in-law, so she signed the will despite her unhappiness with its terms.

Over the course of the following year, the decedent met with Stefanik in her home on several occasions as she formulated her own testamentary plan. The decedent told her attorney she was very concerned that her choice of agent and fiduciary would anger or alienate Joan Ramos and her daughter, Cathleen Ramos (the objectant), who had been appointed to those positions in the existing estate-planning documents. The decedent finally signed her last will and testament on November 15, 2013. It was offered for probate after her death. Cathleen Ramos objected.

This Court's August 2, 2021 decision/order (the "Order") granted the proponent's motion for summary judgment and accepted the decedent's last will and testament for probate. The objectant has now filed a motion under CPLR 2221(e) for (1) leave to renew its motion for summary judgment; (2) to reverse, expunge and set aside the order granting summary judgment; and (3) extending the time for objectant to complete discovery. The objectant offers "evidence which has come to light that was not available at the time of the June 14, 2021 motion or at the time [opposition papers were filed] on July 7, 2021."

The objectant mischaracterizes its motion when it terms it an effort to "renew a prior motion" for summary judgment under CPLR 2221(e). When Objectant replied to the then-proponent's motion, it was in the form of an affirmation- and not a motion- and it was in opposition to a "motion to dismiss," not the motion for summary judgment actually filed by the proponent. Until the present pleading, objectant had never filed a motion of any kind in this Court (In re Damjanac, 2000 NYU LEXIS 2306 [Sur Ct Queens Cty 2000]). Notwithstanding that the present motion is "procedurally incorrect" (In re Damjanac, 2000 NYU LEXIS 2306), the Court will again disregard the defects in objectant's pleadings and liberally construe her motion as one predicated on a prior prayer for relief actually filed in this Court (CPLR 3026).

In a similar vein, Objectant also asks that the Court "reverse, expunge and set aside the [Order] granting summary judgment." While this Court is without the power to reverse itself, it can certainly "stay, vacate or modify" its Order under CPLR 2221(a). The Court will therefore construe the objectant's pleading as one seeking a remedy which is within this Court's power to confer.

A motion for leave to renew must offer new facts not previously offered and which would change the prior determination (CPLR 2221 (e)[2]). Such a motion must also provide reasonable justification for the failure to present such facts on the prior motion (CPLR 2221(e)[3]).

The Court finds that the objectant has met the requirements of CPLR 2221(e) in that the facts offered with its current motion were not previously before the Court in their current form. A reasonable justification for the failure to present the facts on the prior proceedings has also been offered. The objectant's motion to renew is therefore granted insofar as the Court will examine the newly-proffered evidence to assess whether its presentation would have changed the Court's prior determination granting summary judgment as required under CPLR 2221(e)[2].

The new evidence offered by objectant consists of complete 911 incident reports, medical records and postmortem assessments of decedent's capacity by medical professionals.

The primary evidence offered by objectant consists of periodic reports of home visits made by K. Mahar, RN, ANP (hereinafter the "RN").^[1] Also offered are 911 incident reports by the Saugerties Police Department, an affidavit by the objectant, and affidavits reviewing the RN's reports and the 911 incident reports by Ravi Ramaswami, MD and Anne B. Pagano, LCSW, ACSW, BCD, C-ASWCM.

The 911 incident reports provided to objectant pursuant to her FOIL request begin when decedent was 99 years old in January 2013 and end December 2014. As in any examination of facts relevant to testamentary capacity, the Court will focus primarily on evidence as to capacity at or around the time that decedent signed her November 15, 2013 will. Only two such entries were made at or around the time of the will-signing:

• On October 18, 2013 -- 4 weeks before her will-signing - the decedent reported having trouble reaching her bank by phone. Police personnel reminded her that it was a weekend, when banks are typically closed.

• On December 10, 2013, 3 weeks after the will-signing, decedent called 911 because she was having difficulty calling her niece in New Jersey. The reporter adds that the decedent has "ongoing issue ... unable to make phone calls, has called 911 and this agency multiple times for non-emergency requests."

All together, the 911 incident reports establish that the decedent had moments of confusion and anxiety and often expressed fears about how her daughter-in-law, Joan Ramos, would react to her plans for a new will. It is noteworthy that the decedent expressed the same concerns about Ramos in her conversations with the attorney-draftsperson.

The RN reports begin in February 2011, when the decedent was 96 years old, and were intended to address "ongoing medical problems," chiefly the decedent's hypertension and deep vein thrombosis in her leg. Each report includes the RN's lengthy summary of decedent's medical condition, including observations about her mood and "neuro" and "psych" conditions.

The RN found the decedent to be alert and oriented to time, person and place on virtually every occasion she visited with her. In June 2011, the RN diagnosed the decedent with "adjustment disorder with depression" and "anxiety disorder generalized," citing the decedent's concerns about hospitalization and home care. Anxiety and distrustfulness were also observed. Beginning in early 2013, the decedent was reported to be grieving, "suspicious and untrusting of family." In April 2013, the RN diagnosed the decedent with "personality disorder" and referred to her "paranoidal ideations."

All told, the RN observed signs of the following conditions in decedent during her visits: personality disorder, psychosis, anxiety disorder, adjustment disorder with depression, frailty, paranoidal ideation, sadness, depression, anxiety and senility without psychosis.^[2]

An RN is not a person legally competent to make a medical diagnosis (Abalola v. Flower Hospital, 44 A.D.3d 522 [1st Dept 2007]; NYS Office of the Professions, op.nysed.gov/prof/nurse [last accessed 3/28/2022]), but she can make referrals to counseling or psychiatric services. Sadly, despite their stated concerns about decedent's ongoing depression, anxiety and occasional confusion, no one in her life - family or professional - thought it appropriate to recommend or seek counseling or psychiatric treatment to alleviate her distress. There are thus no referrals to specialists for mental health tests or other evaluations mentioned in the RN's reports.^[3] The conditions from which decedent reportedly suffered -- personality disorder, psychosis, anxiety disorder, adjustment disorder with depression, frailty, paranoidal ideation, sadness, depression, anxiety and senility without psychosis -- were not diagnosed during decedent's lifetime by persons legally competent to do so, nor were they treated.

Anne B. Pagano, LCSW, ACSW, BCD, C-ASWCM was retained after the decedent's death to review affidavits prepared for this proceeding and the records prepared by the RN and the Saugerties Police Department. Never having met the decedent, Ms. Pagano nevertheless pronounced her to be suffering from "omnipresent paranoid delusions and dementia" and "omnipresent mental illness" which were symptomatic of "her extreme mental decline" based solely on the observations and conclusions of the RN and Town of Saugerties police officers.

The testimony of a medical expert who "never examined the [decedent] and was never...